Part 3 Consequences of Removal Chapter 10 Children’s Experiences

Developing community justice solutions within a context of self-determination is essentially a practical task. Governments are not required to relinquish their responsibilities but they are required to relinquish control over decision-making for Indigenous communities. Successful Indigenous community justice responses require efficient, practical and continuing support from governments to facilitate communities in the difficult process of finding acceptable solutions. At the same time structural issues must be addressed by governments. These are the underlying social and economic issues which cause crime and demand a co-ordinated Commonwealth, State and Territory response.

Sentencing Article 37(b) of the Convention on the Rights of the Child states that ‘no child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortestappropriate period of time’. Other international instruments require that imprisonment is a sanction of last resort for juveniles: Rule 1 of the UN Rules for the Protection of Juveniles Deprived of Their Liberty and Rules 17.1(b) and 19.1 of the UN Standard Minimum Rules for the Administration of Juvenile Justice.

Indigenous young people generally receive harsher sentences in the Children’s Court than non-Aboriginal young people, particularly at the point of being sentenced to

detention (Gale et al 1990, Crime Research Centre 1995, Luke and Cunneen 1995, Criminal Justice Commission 1995). Where data are available, government submissions to the Inquiry support this picture.14

Tasmanian Indigenous youth comprise 3.3% of the relevant youth population, 13% of young people on community-based supervised orders and 19.5% of young people detained (Tasmanian Government submissionpage D-21).

In Queensland in 1994-95 Indigenous young people comprised 31% of all finalised Children’s Court appearances, although only 3.6% of the youth population. At the lower end of the sentencing scale Indigenous youth were less over-represented. For example, they comprised 21% of those reprimanded and 16% of those fined. In contrast, at the harsher end of the sentencing scale, the level of over-representation was greater with 56% of detention orders being made against Indigenous youth (interim submission page 94). Two other recent reports in Queensland confirm these points (Criminal Justice Commission 1995, Queensland Aboriginal Justice Advisory Council1995). The sentencing decision is a complex one taking a wide range of factors into account. A number of points are particularly relevant to the process of sentencing Indigenous young people. • Indigenous young people brought before the courts are more likely to come from rural backgrounds and are more likely to appear before non-specialist Children’s Courts. Geographic isolation also raises issues of inadequate legal representation, fewer non-custodial sentencing options and harsher sentencing attitudes by non-specialist magistrates. • Indigenous young people are more likely to have been previously institutionalised, less likely to have received a diversionary alternative to court and are more likely to have a greater number of prior convictions than non-Indigenous young people. Each of these factors increases the likelihood of a custodial order. • The existence of a prior record strongly influences the sentencing decision. Indigenous young people tend to have a longer criminal history and are therefore at greater risk of incurring custodial penalties. Because intervention occurs at a younger age with Indigenous children, they accumulate a criminal record much earlier than non-Indigenous children. • Discrimination at earlier stages of the system results in Indigenous young people being less likely to receive diversionary options and being more likely to receive the most punitive of discretionary options. These factors compound as the young person moves through the system. Apparently equitable treatment at the point of sentencing may simply mask earlier systemic biases. • The current sentencing trend is to treat ‘repeat offenders’ more harshly, either by way of mandatory sentences orgreater reliance on sentencing principles of retribution, general and specific deterrence and community protection. This will have its greatest negative effect on Indigenous young people. They are precisely the group who, for reasons discussed above, are more likely to have longer criminal histories.

Repeat offenders Recent changes to sentencing laws in the NT, WA and Queensland are likely to increase the levels of incarceration of Indigenous young people. Western Australia and Queensland are already the States with the highest rates of over-representation of Indigenous young people in custody.

A recent amendment to the NT Juvenile Justice Act imposes a mandatory 28 day period of detention for 15 and 16 year olds found guilty of a second ‘nominated’ property offence such as criminal damage, stealing, unlawful entry of a building and unlawful use of a motor vehicle. The amendment also creates ‘punitive work orders’ as an additional sentencing option over and above Community Service Orders. According to the Attorney General at the time the amendment was tabled in Parliament, ‘The punitive work order will be hard work; it will be public. Those serving a punitive work order will be obvious to the rest of the community. They will be identifiable as PWOs either by wearing a special uniform or some other label’ (NT Attorney-General ministerial statement, ‘Criminal Justice System and Victims of Crime’, 20 August 1996).

In WA the Criminal Code was amended to provide for mandatory 12 month custodial terms for adults or young people convicted of their third break and enter offence. In WA the Inquiry was told that the Sentencing Act 1995 (WA) fails to recognise Aboriginal customary law and does not recognise the principle of imprisonment as a sanction of last resort. The principle in fact was deleted from the Criminal Code in 1995. The ALSWA expressed concern that the sentencing principles in the Young Offenders Act 1994 are inadequate. Section 125 directs the court to give primary consideration to the protection of the community when sentencing young offenders who are part of the ‘target group’. The court is to put this consideration ahead of all others, including section 46 which states that ‘accepted notions of justice’ must be incorporated into sentencing decisions. Members of the ‘target group’ are multiple offenders who have served two separate custodial sentences and have committed a further serious offence. This group is likely to have a significant over-representation of Indigenous young people, given their over-representation in juvenile detentions centres (submission127 pages 371-372).

The legislation also allows for a remand in custody ‘for observation’ for a period of 21 days to allow for psychological tests, assessment and recommendations concerning future treatment. The ALSWA drew attention to abuse of the power by magistrates which came to light in the so-called ‘Ice Cream Boy’ case. That case involved a young Aboriginal boy who had been remanded for observation for 30 days (contrary to the legislation) after appearing on a charge of stealing an icecream. The matter came before Judge Yeats of the Children’s Court of WA whofound that it was the third occasion that the young person had been remanded under section 49, each time for 30 days, within a period of 12 months. Judge Yeats described this as an ‘inappropriate use’ of section 49 to ‘remand a young person in custody for one month on a charge of stealing an ice cream valued at $1.90’. The judge found that section 49 was being used to ‘remove the child from the community’ (submission 127 pages 355-356).

The Young Offenders Act1994 (WA) also empowers the Director of Public

Prosecutions to seek a Special Order of the court to increase the custodial sentence of a young person by 18 months where the young person has a record of re-offending and has committed a serious offence. The prior offending histories of Indigenous young people and their greater likelihood of receiving a custodial sentence mean that they are more likely to be affected by these provisions. ‘Aboriginal youth and country youth are discriminated against by this section as one of the qualifying pre-conditions for the special order is an exhibited pattern of repeated detention for any offence and these groups of offenders are more likely to receive detention sentences for minor offences’ (ALSWA submission 127 page 351). The ALSWA called for the Special Order provisions to be repealed.

TheAboriginal and TorresStrait IslanderSocial Justice Commissioner has found these sections of theWA legislation to breach,

• article 3 of CROC because the interests of the child are made secondary to the protection of the community when sentencing,

• article 9(1) of the International Covenanton Civil and Political Rights and article 37(b) ofCROC which provide protectionagainstarbitrary arrest and detentionbecausedetention is arbitrary if it is imposedby a process contrary to ‘acceptednotions of justice’,

• the United Nations StandardMinimum Rules for the Administrationof Juvenile Justice (the Beijing Rules)becauserehabilitation is no longer seen as an important or dominant consideration, and

• article 37(b)of CROC and recommendation92of the Royal Commission intoAboriginal Deaths in Custodywhichrequire that imprisonment be imposed as a last resort andonlyfor the minimum necessary period are breached (Dodson 1995 pages38-39).

Submissions to the Inquiry called for a review of juvenile justice laws in WA as ‘a

matter of urgency’ (Kimberley Land Council submission 345page74, ALSWA submission 127 and Broome and Derby Working Groups submission 518).

A recent South Australia proposal to introduce general deterrence as an additional sentencing principle in the Young Offenders Act 1993 did not proceed. The proposal was to make general deterrence a discretionary consideration in the Youth Court and a mandatory consideration for juvenile offenders having more serious matters determined in the higher courts.

The Queensland Government has recently introduced legislation to increase the maximum penalty for juveniles from 14 years imprisonment to life imprisonment for certain offences and to transfer more cases from the Children’s Court to the jurisdiction of the District Court, which is also likely to increase sentences. Other amendments have introduced ‘community protection’ as an additional principle in the legislation. A Queensland Aboriginal Justice Advisory Council report on juvenile justice noted that ‘despite increased sentencing options and the introduction of Aboriginal elder cautioning, research … indicates that the Juvenile Justice Act, to date, has failed to prevent nor reduce the rate of Aboriginal or Torres Strait Islander representation in the juvenile

justice system’ (1995 page 69).

Punishing parents Holding parents responsible for offences committed by children and young people has been proposed or introduced as a response to juvenile crime in many Australian jurisdictions in recent years. It rests on the assumption that ‘bad’ parenting is a causal factor in juvenile offending. In many jurisdictions courts can also order that parents pay restitution for offences committed by their children.

The impact of this type of legislation on Indigenous families was raised specifically in evidence to the Inquiry. Whatever the merits or otherwise of holding non-Indigenous parents responsible, there are particular concerns in relation to Indigenous people. In part these arise from the application of the non-Indigenous juvenile justice system to Indigenous people and the history of defining Indigenous parents as ‘bad parents’ and using this as a pretext for intervention and removal of children.

Section 58 of the Young Offenders Act 1994 (WA) allows the court to punish parents for the actions of their children. The ALSWA argued that this section ‘is open to abuse by magistrates and Justices of Peace who may be racist or ignorant of Aboriginal family and parenting roles and consequently may seek to impose fines on Aboriginal responsible adults … It is very much an irrational clause to appeasethe political view that being tough on parents solves juvenile crime’ (submission 127 page 349). The ALSWA viewed the provision as hypocritical and discriminatory because the State is exempt from being a ‘responsible adult’ where the children and young people who have committed an offence are in the State’s care.15

Legislation in other States has been criticised for vague definitions of what might constitute ‘wilful neglect’ on the part of parents or ‘substantial contribution’ to the offence committed by the young person (for example, section 197 of the Queensland Juvenile Justice Act 1994). Similar provisions can be found in the NSW Children (Parental Responsibility) Act 1994 and the Tasmanian Statute Law Revision (Penalties) Act 1994 and Child Welfare Act 1960 (Hil 1996 page 281). Both the NSW and Queensland legislation allow the parents to be charged with criminal offences should they breach the court order.

Other recent amendments to the Queensland legislation provide courts with a coercive power to compel parents to attend the court when their children are charged with a criminal offence. A maximum penalty of $3,750 can be imposed on a parent failing to comply with such an order.

Non-custodial sentencing options The Convention on the Rights of the Child requires that ‘a variety of dispositions … shall be available to ensure that children are dealt within a manner appropriate to their well-being and proportionate both to their circumstances and the offence’ (article 40(4)). Several recommendations of the Royal Commission into Aboriginal Deaths in Custody were designed to increase the availability and use of non-custodial sentencing options as

well as Indigenous involvement in and control over the nature of community-based orders (Recommendations 111-114, 236). Recommendation 236 in particular proposed that ‘governments should recognise that local community based and devised strategies have the greatest prospect of success and this recognition should be reflected in funding’.

There are a number of interconnected issues relating to non-custodial sentencing options including the appropriateness of their design for Indigenous young people, their availability both in legislation and in practice, their relative use by magistrates compared to custodial sentences and the supervision of the orders by the relevant department. Non-custodial orders are directly relevant to the issue of contemporary removals. Without adequate alternatives there is an increased likelihood that custodial sentences will be imposed. However, inappropriate or poorly supervised non-custodial options may increase the failure of Indigenous young people to successfully complete the orders and so may result in detention.

In WA Youth Community Based Orders are the principal supervised non-custodial option for young people. The Inquiry was told that Aboriginal people are not involved in the development of these ‘community-based’ options. A secondary concern was the ability of the department to supervise the orders adequately (ALSWA submission 127 page 350). This leads to another set of problems and potential further criminalisation. Indigenous people have the highest level of non-completion in every community-based order category (submission 127 page267).

The failure to use non-custodial sentencing options as often as possible was also raised. Part of this failure relates directly to sentencing disparities between specialist Children’s Courts, primarily in the large cities, and rural courts constituted by non-specialist magistrates or, in WA, lay Justices of the Peace. Because the majority of Indigenous young people appear in non-specialist country courts, any sentencing disparity disproportionately affects Indigenous children (Luke 1988). Recent data supplied by the Senior Children’s Court Magistrate in NSW indicated that non-specialist country courts impose longer minimum terms and shorter additional terms than specialist magistrates and that in somecountry circuits young people are about two and a half times more likely to receive a custodial sentence than in specialist Children’s Courts (Scarlett 1996 page 5). This pattern effectively means that Indigenous young people are more likely to receive a custodial order than a non-custodial order and that the order is more likely to have a longer mandatory imprisonment period (the minimum term) and a shorter potential period of supervision after release to the community (the additional term).

In WA lay Justices of the Peace try and sentence for many criminal offences in rural areas. They impose higher fines than magistrates for comparable offences, capacity to pay was considered in only a minority of cases and half of the defendants fined by the Justices of the Peace defaulted on their fine (ALSWA submission 127 page 254). Again these differences directly affect Indigenousyouth because they are more likely to be sentenced in areas where Justices of the Peace preside over courts. The ALSWA strongly argued that the power of Justices of the Peace in WA to determine charges and impose penalties,

[Significantly] contributes toon-going Aboriginal juvenile over-representation in detention centres … While these powers remain in place, Aboriginaljuveniles in the rural and remote areas will continue to be subjectedto an unregulated second class system of justice (submission127 page 373).

The Inquiry was informed of ‘a great need to find alternative placements and programs for Aboriginal juveniles’ (ALSWA submission 127 page 374). In WA alternatives could involve placement within Aboriginal communities and work on Aboriginal owned stations. In NSW the Inquiry was informed that ‘the Government should put resources into programs that will divert Aboriginal children from the criminal justice system and at the same time empower communities to take control of social problems in their own communities’ (Western Aboriginal Legal Service (Broken Hill) submission 755). The Tasmanian Aboriginal Centre (TAC) stated that ‘resources need to be directed to the Aboriginal community to establish alternatives to imprisonment and detention of young Aborigines’ (supplementary submission 325 page 4). Lack of resources has prevented the TAC from continuing with a program of placing Aboriginal children at Rocky Cape as an alternative to detention (supplementary submission 325 page 4).

Indigenous organisations in Queensland have complained of the failure to use community service orders frequently enough and to resource Aboriginal devised and controlled community-based programs adequately (Cunneen and McDonald 1997 page 177). Generally, the major issue to emergein relation to Indigenous community-based strategies is the failure to provide adequate resourcing. ‘It is clear that no matter what non-custodial options are available in juvenile justice legislation, a central issue will be the extent to which they can be utilised in practice’ (Cunneen and McDonald 1997 page 178).

Conclusions State and Territory governments cannot be accused of doing nothing in relation to specific programs for Indigenous young people. On the contrary, all jurisdictions can point to various initiatives. The issue is whether governments are doing enough in light of the massive levels of over-representation and, more importantly, whether what is being done reflects the types of solutions which Indigenous people see as important.

The Inquiry was told of two Indigenous-run programs that had come into conflict with State governments. In Queensland Piabun provides an innovative approach to developing self-esteem and deterring offending among young people. It was established by a group of Brisbane community elders to supervise Indigenous young people on court orders (Piabun submission 398). Initially the program had the support of the Department of Family Services and Aboriginal and Islander Affairs and the program claimed considerable success in preventing re-offending. State government funding for the program was stopped in December 1995 and not recommenced until the later part of 1996 (Mark Johnson submission 751 page 7). It was suggested that the decision to stop funding was related to resistance by the elders to greater departmental control over the project (submission 398).

A widely recognised Aboriginal-run program in WA is the Lake Jasper Project. The project assists Indigenous young people and their families. Originally it was funded by the Australian Youth Foundation and later by the State Government. However State support has been withdrawn. The Inquiry was told that the project was established ‘amidst massive opposition from all sections of the community’. ‘We structured the program and gave it what we considered to be strong Aboriginal values … to assist the kids with some of the social problems,some of the cultural problems and spiritual problems that they were having’ (Mike Hill evidence 416). The WA Government told the Inquiry that the Division of Juvenile Justice does not refer young people to the Lake Jasper project although, if they were referred by the courts or other agencies, Juvenile Justice officers would provide supervision of orders (Exhibit 19).

Ibelieve the government hasa political problem with theproject and it’s about self-determination.Idon’t think the government likesorwants tohave Aboriginal people in autonomous areas of self-determination. It’s far too dangerous(MikeHill evidence416).

Consistent with the right of self-determination, the Royal Commission into Aboriginal Deaths in Custody recognised that Indigenous organisations should play a key role in the sentencing process of Indigenous young people. Recommendation 235 states,

Thatpoliciesofgovernment and thepractices of agencies whichhave involvement with Aboriginaljuveniles in thewelfare and criminal justice systems shouldrecognise and be committed to ensuring, through legislative enactment, thatthe primary sources of advice about the interests and welfare of Aboriginal juvenilesshould be thefamilies and community groupsof the juveniles and specialist Aboriginal organisations, includingAboriginalChild Care Agencies (emphasis added).

Nowhere is this recommendation adequately implemented. Recent research on the extent to which Indigenous organisations have a role in the sentencing process shows only limited and discretionary involvement. Nationally there has been some improvement but nowhere is the change as extensive as the Royal Commission recommendation demanded (Cunneen and McDonald 1997 page 175). The Tasmanian Government’s reading of Recommendation 235 is illustrative.

TheproposedYouth Justice Bill enables families and other interestedparties to be involved in decisionson the sanctioningof young people through the cautioning and family conferencing process (submission pageD-25, emphasis added).

The limitations of this approach in relation to both cautioning and conferencing have been noted above. Linda Briskman, an academic and researcher for the Secretariat of National Aboriginal and Islander Child Care, told the Inquiry,

… self-determination seems to be equatedwith little more than consultation … When you look at government self-determinationpolicies, control is stillmaintainedvery strongly.Governments have actually been unwilling to transferpower to Aboriginal communities … that’s thecrux of the problem (submission134pages6 and 9).

The Inquiry was repeatedly told that Indigenous people want greater control over what is happening to their children and young people. For example, the Broken Hill office of the Western Aboriginal Legal Service informed the Inquiry of measures which local Aboriginal community leaders have argued would be appropriate non-custodial options in western NSW. These include the use of elders’ panels to determine appropriate responses and the use of available land resources such as Mootwingee National Park and Wienteriga Station where young people could diverted from detention centres and supervised by an Aboriginal unit. These responses are about taking ‘some control over juvenile justice’, redressing destructive policies, empowering elders and ‘bringing children into closer contact with their culture’ (submission 755). In Tasmania the TAC would like to use Rocky Cape, St Helens and Badger Island, all of which have significant cultural meaning for Aboriginalchildren, as sites for alternative programs for Indigenous young people (supplementary submission 325 page4).